§ 28:171 — Enumerations of rights guaranteed

Louisiana § 28:171

• Jurisdiction: Louisiana
• Title 28: Mental Health

Text

§171. Enumerations of rights guaranteed
A. No patient in a treatment facility pursuant to this Chapter shall be deprived of any
rights, benefits, or privileges guaranteed by law, the Constitution of the state of Louisiana,
or the Constitution of the United States solely because of his status as a patient in a treatment
facility. These rights, benefits, and privileges include, but are not limited to, civil service
status; the right to vote; the right to privacy; rights relating to the granting, renewal,
forfeiture, or denial of a license or permit for which the patient is otherwise eligible; and the
right to enter contractual relationships and to manage property.
B. No patient in a treatment facility shall be presumed incompetent, nor shall such
person be held incompetent except as determined by a court of competent jurisdiction. The
determination of incompetence shall be separate from the judicial determination of whether
the person is a proper subject for involuntary commitment.
C.(1) The patient in a treatment facility shall be permitted unimpeded, private, and
uncensored communication with persons of his choice by mail, telephone, and visitation.
These rights may be restricted by the director of the treatment facility if sufficient cause
exists and is so documented in the patient's medical records. The patient's legal counsel, as
well as his next of kin or responsible party must be notified in writing of any such restrictions
and the reasons therefor. When the cause for any restriction ceases to exist, the patient's full
rights shall be reinstated. A patient shall have the right to communicate in any manner in
private with his attorney at all times.
(2) The director of a treatment facility shall ensure that correspondence can be
conveniently received and mailed, that telephones are reasonably accessible, and that space
for visits is available. Writing materials, postage, and telephone usage funds shall be
provided in reasonable amounts to recipients who are unable to procure such items.
(3) Reasonable times and places for the use of telephones and for visits may be
established in writing by the director of any treatment facility. However, the times and
places established by the director must allow patients, at a minimum, reasonable daily
communication by telephone and visitation. These rights may be restricted by the director
of the treatment facility if sufficient cause exists and is so documented in the patient's
medical records. The patient's legal counsel, as well as his next of kin or responsible party,
must be notified in writing of any such restrictions and the reasons therefor. When the cause
for any restriction ceases to exist, the patient's full rights shall be reinstated.
(4)(a) The director of any substance use treatment facility may restrict the visitation
rights of a patient who is voluntarily admitted to such treatment facility under the provisions
of R.S. 28:52, 52.2, 52.3, and 52.4 for the initial phase of treatment but no longer than seven
days unless good cause exists to extend the restriction and is so documented in the patient's
record. This restriction shall not apply to visitation by the patient's attorney, or if he is not
represented by counsel, the mental health advocate, or the patient's minister. This restriction
shall also not apply to a parent or legal guardian of a patient who is a minor unless the
director determines that good cause exists that such restriction shall be in the best interest of
the patient and is so documented in the patient's record. When the facility director
determines the need to restrict visitation of new patients he shall post notice of such
restriction in places prominent to all new admissions, and shall inform each new patient of
the restriction prior to the admission of the patient, and the length and duration thereof, and
further, that such restriction may be extended on an individual basis as determined to be in
the patient's interest by the treatment staff with the concurrence of the medical director.
(b) Nothing herein shall be construed to further restrict other forms of patient
communication as permitted in this Section, nor shall this restriction apply to mental health
treatment facilities.
D. Seclusion or restraint shall only be used to prevent a patient from physically
injuring himself or others. Seclusion or restraint may not be used to punish or discipline a
patient or used as a convenience to the staff of the treatment facility. Seclusion or restraint
shall be used only in accordance with the following standards:
(1) Seclusion or restraint shall only be used when verbal intervention or less
restrictive measures fail. Use of seclusion or restraint shall require documentation in the
patient's record of the clinical justification for such use as well as the inadequacy of less
restrictive intervention techniques.
(2) Seclusion or restraint shall only be used in an emergency. An emergency occurs
when there is either substantial risk of self-destructive behavior, as evidenced by clinically
significant threats or attempts to commit suicide or to inflict serious harm to self, or a
substantial risk or serious physical assault on another person, as evidenced by dangerous
actions or clinically significant threats that the patient has the apparent ability to carry out.
(3) A written order from a physician, psychologist, medical psychologist, or
psychiatric mental health nurse practitioner acting within the scope of his institutional
privileges shall be required for any use of seclusion or restraint. If, however, no physician,
psychologist, medical psychologist, or psychiatric mental health nurse practitioner is
immediately available, a registered nurse who has been trained in management of disturbed
behavior may utilize seclusion or restraint. The nurse or the nursing supervisor shall then
immediately notify a physician, psychologist, medical psychologist, or psychiatric mental
health nurse practitioner with institutional authority to order seclusion or restraint and
provide him with sufficient information to determine whether seclusion is necessary and
whether less restrictive interventions have been tried or considered. The physician,
psychologist, medical psychologist, or psychiatric mental health nurse practitioner may issue
a telephone order for seclusion or restraint, if such order is indicated.
(4) Written orders for the use of seclusion or restraint shall be time limited and not
more than twelve hours in duration. The written order shall include the date and time of the
actual examination of the patient, the date and time that the patient was placed in seclusion
or restraint, and the date and time that the order was signed.
(5) A renewal order for up to twelve hours of seclusion or restraint may be issued by
a physician, psychologist, medical psychologist, or psychiatric mental health nurse
practitioner with institutional authority to order seclusion or restraint after determining that
there is no less restrictive means of preventing injury to the patient or others. If any patient
is held in seclusion or restraint for twenty-four consecutive hours, the physician,
psychologist, medical psychologist, or psychiatric mental health nurse practitioner with
institutional authority shall conduct an actual examination of the patient and document the
reason why the use of seclusion or restraint beyond twenty-four consecutive hours is
necessary, and the next of kin or responsible party shall be notified by the twenty-sixth hour.
(6) Staff who implement written orders for seclusion or restraint shall have
documented training in the proper use of the procedure for which the order was written.
(7) Periodic monitoring and care of the patient shall be provided by responsible staff.
A patient in seclusion or restraint shall be evaluated every fifteen minutes, especially in
regard to regular meals, water, and snacks, bathing, the need for motion and exercise, and use
of the bathroom, and documentation of these evaluations shall be entered in the patient's
record.
(8) Patients shall be released from seclusion or restraint as soon as the reasons
justifying the use of seclusion or restraint subside. If at any time during the period of
seclusion or restraint a registered nurse determines that the emergency which justified the
seclusion or restraint has subsided and a physician, psychologist, medical psychologist, or
psychiatric mental health nurse practitioner with institutional authority to order seclusion or
restraint is not immediately available, the patient shall be released. At the end of the period
of seclusion or restraint ordered by the physician, psychologist, medical psychologist, or
psychiatric mental health nurse practitioner the patient shall be released unless a renewal
order is issued.
(9) Mechanical restraints shall be designed and used so as not to cause physical
injury to the patient and so as to cause the least possible discomfort.
(10) Facilities using seclusion or restraint shall have written policies concerning their
use in place before they can be used. These policies shall include standards and procedures
for placing a patient in seclusion or restraint, and for informing him of the reason he was put
in seclusion or restraint and the means of terminating such seclusion or restraint.
(11) Nothing in this Section shall be construed to expand the scope of practice of
psychology as defined in R.S. 37:2351 et seq. to authorize the ordering, administering, or
dispensing of medications, or to authorize any practice not permitted under the privileges
granted by the institution.
(12) The department shall adopt rules and regulations in accordance with the
Administrative Procedure Act to govern the use of seclusion and restraint. Such rules and
regulations shall respect the patient's individual rights, protect the patient's health, safety, and
welfare, and be the least restrictive of the patient's liberty. The department shall adopt rules
and regulations to provide for enforcement procedures and penalties applicable to a person
who violates the requirements of this Section.
E. A patient may be placed alone in a room or other area pursuant to behavior
shaping techniques such as "time-out". Such confinement may only be used as part of a
written treatment plan, shall not be used for the convenience of staff, and may be used only
according to the following standards and procedures:
(1) Placement alone in a room or other area shall be imposed only when less
restrictive measures are inadequate.
(2) Placement alone in a room or other area shall only be ordered by a qualified
professional trained in behavior-shaping techniques and authorized in accordance with the
written policies and procedures of the facility to order the use of behavioral-shaping
techniques.
(3) The period of placement alone in a room or other area shall not exceed thirty
minutes.
(4) The patient shall be observed and supervised by a staff member.
(5) The period of placement alone in a room or other area shall not exceed a total of
three hours in any twenty-four-hour time period. If the placement alone in a room or other
area exceeds a total of three hours in any twenty-four-hour time period, it shall then be
considered seclusion and shall be governed by the procedures and standards set forth in
Subsection D of this Section.
(6) The date, time, and duration of the placement shall be documented.
(7) In treatment facilities where patients are placed alone in a room or other area as
a behavior-shaping technique, there shall be written policies and procedures governing use
of such behavior-shaping technique.
F.(1) No patient confined by emergency certificate, judicial commitment, or
noncontested status shall receive major surgical procedures or electroshock therapy without
the written consent of a court of competent jurisdiction after a hearing.
(2) If the director of the treatment facility, in consultation with two physicians,
determines that the condition of such a patient is of such a critical nature that it may be life-threatening unless major surgical procedures or electroshock therapy are administered, such
emergency measures may be performed without the consent otherwise provided for in this
Section. No physician shall be liable for a good faith determination that a medical
emergency exists.
G. Every patient shall have the right to wear his own clothes and to keep and use his
personal possessions, including toilet articles, unless determined by a physician, medical
psychologist, or psychiatric mental health nurse practitioner that these are medically
inappropriate and the reasons therefor are documented in his medical record. The patient
shall also be allowed to spend a reasonable sum of his own money for canteen expenses and
small purchases, and to have access to individual storage spaces for his private use. If the
patient is financially unable to provide these articles for himself, the treatment facility shall
provide a reasonable supply of clothing and toiletries.
H. Every patient shall have the right to be employed at a useful occupation
depending upon his condition and available facilities.
I. Every patient shall have the right to sell the products of his personal skill and labor
at the discretion of the director of the treatment facility and to keep or spend the proceeds
thereof or to send them to his family.
J. Every patient shall have the right to be discharged from a treatment facility when
his condition has changed or improved to the extent that confinement and treatment at the
treatment facility are no longer required. The director of the treatment facility shall have the
authority to discharge a patient admitted by judicial commitment without the approval of the
court which committed him to the treatment facility. The court shall be advised of any such
discharge. The director shall not be legally responsible to any person for the subsequent acts
or behavior of a patient discharged by him in good faith.
K. Every patient shall have the right to engage a private attorney. If a patient is
indigent, he shall be provided an attorney by the mental health advocacy service, if he so
requests. The attorneys provided by the mental health advocacy service or appointed by a
court shall be interested in and qualified by training or experience in the field of mental
health statutes and jurisprudence.
L. Every patient shall have the right to request an informal court hearing to be held
at the discretion of the court within five days of the receipt of the request by the court. If the
court determines that a hearing is appropriate and if the patient is not represented by an
attorney of his own or from the mental health advocacy service, the court shall appoint an
attorney to represent the patient. The purpose of the hearing shall be to determine whether
or not the patient should be discharged from the treatment facility or transferred to a less
restrictive and medically suitable treatment facility.
M. No provision hereof shall abridge or diminish the right of any patient to avail
himself of the right of habeas corpus at any time.
N. Every patient shall have the right to be visited and examined at his own expense
by a physician, psychologist, medical psychologist, or a psychiatric mental health nurse
practitioner designated by him or a member of his family or an interested party. The
physician, psychologist, medical psychologist, or psychiatric mental health nurse practitioner
may consult and confer with the medical staff of the treatment facility and have the benefit
of all information contained in the patient's medical record.
O. Prefrontal lobotomy shall be prohibited as a treatment solely for mental or
emotional illness.
P. No medication may be administered to a patient pursuant to the provisions of this
Chapter except upon the order of a physician, medical psychologist, or psychiatric mental
health nurse practitioner. The physician, medical psychologist, or psychiatric mental health
nurse practitioner is responsible for all medications which he has ordered and which are
administered to a patient. A record of medications administered to each patient shall be kept
in his medical record including all instances when a patient is administered medication
without his consent. Medication shall not be used for nonmedical reasons such as
punishment or for convenience of the staff.
Q. A person admitted to a treatment facility has the right to an individualized
treatment plan and periodic review to determine his progress. The appropriate staff of the
facility shall review the person's progress at least at intervals of thirty days. The staff shall
enter into the person's medical record his response to medical treatment, his current mental
status, and specific reasons why continued treatment is necessary in the current setting or
whether a treatment facility is available which is medically suitable and less restrictive of the
patient's liberty.
R. A person admitted to a treatment facility has the right to have available such
treatment as is medically appropriate to his condition. Should the treatment facility be
unable to provide an active and appropriate medical treatment program, the patient shall be
discharged.
S. Any patient known by a director of a treatment facility to be practicing a well-recognized religious method of healing under the care of a duly accredited practitioner
thereof shall not be ordered medically treated, unless he is, as a result of a mental disorder,
a danger to himself or to others.

Legislative History

Amended by Acts 1972, No. 154, §1; Acts 1974, No. 294, §1; Acts 1977, No. 714, §1; Acts 1978, No. 680, §1; Acts 1978, No. 782, §1, eff. July 17, 1978; Acts 1990, No. 87, §1; Acts 1992, No. 798, §1, eff. July 7, 1992; Acts 1993, No. 891, §1, eff. June 23, 1993; Acts 1995, No. 436, §1; Acts 1995, No. 1287, §1, eff. June 29, 1995; Acts 1997, No. 985, §1; Acts 2006, No. 664, §1; Acts 2017, No. 369, §2; Acts 2018, No. 206, §1.